Kinder v. Hannibal Car Wheel & Foundry Co.

• Decision Date: 04 June 1929
• Docket Number: No. 20611.,20611.
• Citation: 18 S.W.2d 91
• Parties: KINDER v. HANNIBAL CAR WHEEL & FOUNDRY CO. et al.
• Court: Missouri Court of Appeals

18 S.W.2d 91

KINDER v. HANNIBAL CAR WHEEL & FOUNDRY CO. et al.

No. 20611.

St. Louis Court of Appeals. Missouri.

June 4, 1929.

Appeal from Hannibal Court of Common Pleas; Charles T. Hays, Judge.

"Not to be officially published."

Proceeding under the Workmen's Compensation Act by Elzie William Kinder, opposed by the Hannibal Car Wheel & Foundry Company, employer, and the Fidelity & Casualty Company of New York, insurer. The award of the Commission was affirmed, and employer and insurer appeal. Affirmed.

G. A. Hodgman, of St. Louis, and Mahan, Mahan & Fuller, of Hannibal, for appellants.

Roy Hamlin and Ben Ely, Jr., both of Hannibal, for respondent.

BECKER, J.

This is an appeal from a judgment of the Hannibal court of common pleas affirming an award by the Missouri Workmen's Compensation Commission.

Plaintiff's claim is based upon an alleged double hernia claimed to be the result of an accident which occurred on February 17, 1927, while plaintiff was employed by the Hannibal Car Wheel & Foundry Company.

Defendant's answer admitted plaintiff was in its employ on the date in question, but denied each and every other allegation of the claimant in respect to his alleged claim.

Upon final award being made by the Missouri Workmen's Compensation Commission, the case was duly appealed by defendants below to the Hannibal court of common pleas, and was tried in said court at the April term, 1928. On May 22, 1928, the court made its finding in behalf of the plaintiff, affirming in all things the final award of the Missouri Workmen's Compensation Commission, awarding the claimant the sum of $210 for medical aid and expenses, the cost of an operation, if accepted, and for temporary total disability the sum of $15 per week for 534/7 weeks, amounting to $803.57, a total of $1,013.57, subject to a lien of $100 for attorney's fees in favor of Roy Hamlin. After unsuccessful motions for new trial and in arrest of judgment, defendants duly appealed to this court.

The appealing defendants rest their case here on two grounds: First, that there was no accident within the meaning of the Missouri Workmen's Compensation Act; second, that there was no injury to plaintiff within the meaning of the law.

Plaintiff testified that, while he was in the employ of defendant foundry company on the 17th day of February, 1927, he was working on a job making cores for tractor wheels, and was working by himself. Before this time two men had always been employed on this kind of work, and plaintiff had had a helper working with him, but on this occasion he was doing the work alone. It was his duty to use an air hoist to raise the core from a bench and to push it along on an overhead track to a carrier, which would carry it into an oven. The mold was placed on a large plate, and in placing it on the carrier the air was released slowly from the hoist, letting the mold containing the core drop into place. There were a number of iron bars on this carrier, and the mold would rest between these bars. There was just sufficient room to push the mold in between two layers of bars, and plaintiff had to push the mold with his hand and stomach in order to get it into place. Before he could get the mold into place between the bars, the air shut off, allowing the entire weight of the mold, which plaintiff put at between 350 and 400 pounds, to rest against his stomach. He had to use all of his strength in holding up and pushing the mold into place as the air was cut off entirely. To quote his own words:

"While I was in this position, this way, that's the time I felt something give way. Just as I got the bar down and started to shove it on something gave way. It felt like a tearing or something in there. I shoved the mold on in. I was already half way doubled over. I can not hardly describe what kind of a feeling it is, it is so painful."

He went to his foreman immediately, and asked leave to go to the washroom to examine himself. Seeing no protuberance, he then asked his foreman if he could see the doctor, "it was hurting so bad." Plaintiff then went to Dr. Joel Hardesty with an order from the foundry company. According to plaintiff, Dr. Hardesty told him he had a hernia, and that he would have to have an operation; that it was the only way to cure it completely.

As has been stated above, plaintiff himself testified that he felt a severe pain while lifting the weight mentioned. He also testified that at the time of the accident he gagged and tried to vomit. He stated that Dr. Hardesty informed him, within a few hours after the accident, that he had a hernia.

Dr. W. P. Birney testified that he examined plaintiff on the 17th or 18th day of February, and again on several occasions later on. He testified that in his examination of plaintiff, when plaintiff coughed, he felt the impulse of both sides of the internal ring. He testified that plaintiff had "a potential hernia, it is double, more pronounced on one side than the other, and is termed inguinal. By the term `inguinal' I mean that the protrusion is at the internal ring. It has never gone through the internal ring. This hernia has not reached the stage of bubonoceal. * * * I used the word `potential' since some future strain or lift might cause this hernia sac to protrude further. The fact that there is an impulse on coughing indicates two things: The existence of the sac, and the entrance into the internal ring. * * * The impulse I felt on coughing is the impulse of the intestines against the membraneous lining of the abdomen, the sac. The sac is the membrane as you call it that is between the intestines and the ring and passes down as a sac as it comes through."

Dr. J. J. Bourn, a witness for plaintiff, testified that he had examined plaintiff on three occasions, and that his condition at all times was the same, and that he found plaintiff had a "double inguinal hernia. * * * I call this a potential hernia, it is existing. A hernia is the protrusion of a sac and contents beyond its normal. In a hernia of this kind the sac is made up of peritoneum, that is what constitutes a hernia sac, and it is formed by the bulging of the abdominal contents outwards from the abdominal cavity in much the same way as a weak spot in an inner tube bulges out when inflated."

Dr. William H. Hays testified that he had examined plaintiff, and when plaintiff coughed he found an impulse in "both of plaintiff's inguinal canals. * * * There must be a protrusion through the ring at this time or we would not get the impulse we had. When there is a complete hernia in a man there is a protrusion through the ring, sometimes through the scrotum. Until it comes through it is either...